Court Of Justice Of The European Union Decisions Research Articles

Indirect Tax Impacts of Transfer Pricing Adjustments: EU & US Approaches When the Price Evolves To Make It “Right”?

How do you handle the indirect tax (VAT/sales tax) impact of year-end transfer pricing profit adjustments between related members of a multinational group? This is, by definition, a worldwide question, since such groups operate across borders. Existing approaches (if any) vary across jurisdictions. The European Union and the United States are both grappling with this subject. Three key cases entailing the VAT consequences of such adjustments are currently before the Court of Justice of the European Union (CJEU). Likewise, in various states in the United States, a growing number of cases reveal potential sales/use tax liabilities arising from transfer pricing adjustments. While awaiting the pending CJEU decisions, in this article, the authors explore, from a comparative perspective, how two fundamentally different systems are trying to address the same problem.

On the interplay between competition law and privacy: the impact of Meta Platforms case

ABSTRACT In July 2023, the Court of Justice of the European Union (CJEU) issued a landmark judgment at the intersection of competition law and data privacy law. This article delves into two pivotal aspects: firstly, the recognition of privacy-related harms as factors within the realm of competition law considerations; and secondly, an examination of the role of competition law authorities in addressing infringements related to data protection. The analysis emphasizes the practical significance of the CJEU decision, asserting its importance rather than controversy. The judgment provides clarity on how regulatory rules can influence competition assessments and highlights the potential for competition authorities to consider the broader market and regulatory landscape without exceeding their mandate.The Facebook case, while not exhaustive, marks a crucial step in elucidating how regulatory rules influence competition assessments and how competition authorities can navigate broader market and regulatory considerations within their mandate. .

RAZVOJ SUPRANACIONALNOG SUSTAVA JAVNIH FINANCIJA U SVJETLU PRIMARNOG PRAVA EUROPSKE UNIJE : ANALIZA PRAKSE SUDA EU-A

The Court of Justice of the European Union (CJEU) and its competence to interpret the EU’s primary law was particularly in focus during and after the financial crisis, when it decided on the validity of the Union’s recovery instruments in the Pringle, Gauweiler and Weiss cases. Therefore, this paper aims to analyse selected decisions of the CJEU (the Pringle, Gauweiler and Weiss cases), starting from the presentation of the socio-political context in which they were created. After the legal analysis of the CJEU’s argumentation in the selected decisions, the paper will present their impact on the development of the public finance law of the Union. Particular attention will be paid to the interpretative methods used by the CJEU. The aforementioned reflects in the structure of the paper. After the introduction, the second section comprises specific features of interpretation methods in the CJEU case law. The following section will focus on the socio-political context that preceded the selected CJEU decisions. The fourth section presents an analysis of the selected CJEU decisions and reviews the interpretation methods. The fifth section highlights the implications of the CJEU jurisprudence on the legal order of the Union, followed by concluding considerations.

Round-up of European enforcement case law in 2022

... Whilst new challenges awaited us in 2022, with the war in Ukraine raging on and the economic downturn and high inflation, practitioners are still and rightfully so continuing to focus on IP Rights (IPRs). The most recent report on IP-intensive industries has shown again how important IPRs are for the economy and for the job market.1 Specifically regarding hybrid working, hybrid conferences and new technologies continued to present challenges in 2022 and, as far as IP is concerned, a specific focus was on non-fungible tokens and the Metaverse. To be able to embrace the future with its continued challenges, learning from the past is a must and, with that, this article aspires to be a helpful guide. The authors start by summarizing the relevant Court of Justice of the European Union (CJEU) judgments interpreting the Enforcement Directive2 before moving on to CJEU decisions pertaining to substantive IPRs. Part 3 covers the relevant decisions of national courts.

Court of Justice of the European Union and General Court: Binding effect and relationship with the precedent vertical

The precedent vertical through the analysis of the delimitation of the binding effect of the precedent of the Court of Justice of the European Union (CJEU) towards the Tribunal is the key theme of analysis of this research. A definition of the precedent vertical is sought in common law traditions, as well as the obligation of a judge to abide by the CJEU decision already formulated. The hierarchical relationship through the CJEU and the General Court (GC) but also of the relative jurisprudence are also further points of analysis of this work. The statutory rules require the GC to comply with the decisions taken by the CJEU as well as the occasions in which the GC has shown to comply with the provisions of the CJEU, in the absence of a legal obligation and in an attempt to outline the possible existence of a clear and precise doctrine of the preceding vertical in the order of the European Union.

Brace! Brace! Brace! The Wave of Incoming CJEU Decisions

This article considers the large number of pending decisions on data protection matters in front of the Court of Justice of the European Union (CJEU). The CJEU places great weight on protecting the rights of individuals and has not shied away from decisions that create significant practical difficulties for businesses. Businesses operating in the European Union should therefore brace for significant change ahead. The article also considers the extent to which the courts of the United Kingdom will continue to follow decisions of the CJEU. GDPR, Court of Justice, Brexit, Data Protection, CJEU

The origin and development of the European Union sports policy and law.

The presented work is devoted to highlighting the processes of evolution of the EU sports law and policy, identifying facts and events that have contributed to the development of communitarian regulation in this area and establishing trends and directions significant for Ukraine in the European integration aspect. Integration processes, first purely economic and then increasingly multidirectional, could not but affect this vital sphere of social life on the European continent and internationally. Sport is an essential element of the self-realization of a human personality and a sphere of economic activity. It is also a form of international communication, cross-cultural communication, the assertion of authority, and a positive image of countries. Also, sports can be an instrument of political and diplomatic influence or even a means of responding to violations of international law and order. The evolution of EU sports policy and law has been a difficult and long way in the general context of European integration processes. Initially, the sport was not covered by Community law and the spheres of competence of the Communities. However, since the 60s of the last century, the foundations of the European sports model began to form. Implementing the Council of Europe’s standards in the Member States’ practice was essential in forming this model. The European sports model implies, on the one hand, the unity of values and sports traditions of Europe. On the other hand, it is based on considering the national characteristics of European countries, pluralism, and diversity of the organization of sports relations and activities of non-governmental sports organizations. To the main features of the European sports model, which have developed historically and are preserved to this day, the author refers voluntary participation in sports competitions, non-discrimination, democracy, solidarity, compliance with the rules of “fair play,” good governance, and prevention of corruption and abuse. The article characterizes the role of the Court of Justice of the European Union (CJEU) in the creation of the EU acquis in the field of sport. CJEU developed the legal criteria system for extending communitarian rules and principles to the economic aspects of sports activities, including regulating relations with non-state actors such as national Olympic committees, sports federations, etc. Relevant CJEU decisions are analyzed in the study, approaches to the application of EU competition rules in sports, as well as to labor relations, freedom of movement of workers, and the provision of services, are revealed. Further integration and reform of the EU under the provisions of the Lisbon Treaty led to the emergence of a sector of the EU policy in the field of sports and several regulations and organizational measures aimed at realization of this policy. Implementation of the relevant standards in the national legislation, introduction of the best practices of governance in the field of sports in the state policy and activities of non-governmental sports organizations are important components of the implementation of Ukraine’s European integration aspirations, fulfillment of obligations under the Association Agreement and prospectively – the criteria for the EU membership.

Risk and Rights in Transatlantic Data Transfers: EU Privacy Law, U.S. Surveillance, and the Search for Common Ground

Privacy advocates rightly view the Court of Justice of the European Union (CJEU) decision in Data Protection Commissioner v. Facebook Ireland, Ltd. and Maximilian Schrems (Schrems II) as a landmark. But one stakeholder's landmark is another's headache. The CJEU's decision invalidated the EU-U.S. Privacy Shield agreement governing transatlantic transfers of personal data. Citing U.S. surveillance law and practices, the CJEU found that data transfers lacked adequate privacy protections under the EU's General Data Protection Regulation (GDPR). The Schrems II decision thus clouded the future of data transfers that help drive the global economy. This Article offers a hybrid approach to safeguard privacy rights and ensure the viability of transatlantic data flows. The Article's hybrid approach is an alternative to two less promising ways of reading the CJEU's groundbreaking decision. The European Data Protection Board (EDPB) issued recommendations that took an absolutist view of Schrems II. For example, the EDPB rejects reliance on risk assessments that gauge the probability of U.S. surveillance of particular data. The EDPB insists on technical measures such as steep EU-centered encryption that thwart U.S. surveillance but also bar access for U.S. firms. This absolutist approach undermines the whole point of transatlantic data transfers. Another response to Schrems II takes a don't worry, be happy tack. Heralds of optimism assure audiences on both sides of the Atlantic that most transatlantic data transfers are immune as a matter of law from U.S. surveillance, including collection under § 702 of the Foreign Intelligence Surveillance Act (FISA) or Executive Order 12333 (EO 12333). Unfortunately for this optimistic turn, U.S. surveillance authorities are sufficiently broad to reach many communications by EU individuals. In particular, § 702's provision for collecting communications related to U.S. foreign affairs lacks any intelligible limiting principle or specific review of targeting decisions. The U.S. Foreign Intelligence Surveillance Court (FISC) does not approve every target under § 702, although it has the power to scrutinize targeting procedures. Collection under EO 12333 is even broader and not subject to FISC review. In sum, surveillance optimism is a rhetorical trope, not a legal strategy. Navigating between the EDPB's absolutist approach and the heralds' unfounded optimism, this Article proposes a hybrid model. The hybrid outlines a risk-assessment method based on U.S. export controls, which have successfully managed exports of sensitive technology for decades. This model can also be a template for managing transfers of sensitive personal data. In addition, the hybrid model proposes bolstering substantive and institutional safeguards in U.S. law. For example, the Article proposes an Algorithmic Rights Court (ARC) that would probe targeting decisions under both § 702 and EO 12333. Through more precise risk assessment and reinforced institutional and substantive protections, the hybrid model preserves privacy and supports a sustainable transatlantic data transfer regime.

Western Sahara, Morocco, and the EU: Did the CJEU Get it Wrong? A Commentary of Advocate-General Wathelet's Opinion and the CJEU Decision in the Western Sahara Campaign UK Case

Abstract: The legal battle between Morocco's influence in Europe and the Front Polisario has persisted throughout most of the European Union's (EU) existence. At the battle's forefront lies the role of international law inside the EU's complex constitutional and institutional frameworks. In the latest legal proceedings, the Court of Justice of the European Union (CJEU) rendered its decision in the contested Western Sahara Campaign United Kingdom case. The decision did not assist in resolving the EU's legal position with respect to the Morocco-Western Sahara dispute. On one side, Advocate-General Wathelet's substantive opinion applied international law to the EU's role in the Western Sahara-Morocco conflict stricto sensu. On the other side, a rather short CJEU decision reaffirmed the status quo; that EU-Morocco treaties do not apply to the territory of Western Sahara. This commentary analyses and contrasts the CJEU decision and Advocate-General Wathelet's opinion against the EU's Völkerrechtsfreundlichkeit policy. Furthermore, this commentary suggests that the CJEU cannot be held responsible for implementing international law within the EU's external trade framework, as that responsibility – and any consequences from its failure – fall generally to EU institutions, which have thus far refused to follow Völkerrechtsfreundlichkeit as expected.

Is freedom of expression in danger in the light of the CJEU decisions on the cases C-507-17 google v. CNIL and C-18/18 EVA Glawischnig- Piesczek v. Facebook?

Last year in September and November, the Court of Justice of the European Union (CJEU) rendered two important judgements on landmark cases C-507/17 Google v. Commission nationale de L’informatique et des libertes (CNIL) (24 September 2019) and C-18/18 Eva Glawischnig- Piesczek v. Facebook Ireland Limited (G-P v. Facebook) (3 October 2019). At first sight, these cases do not directly related to those fundamental rights as they are more about personal, material and territorial limits on the scope of right to be forgotten (Google v. CNIL) or an injunction (G-P v. Facebook). However they, especially the second judgement, will have serious effect on freedom of expression and access to information. In Google v. CNIL, the CJEU ruled that French national data protection authority’s order demanding that Google remove certain offending search results worldwide was impermissible. On the other hand, in G-P v. Facebook, the Court held that Article 15 of the EU’s e-commerce directive does not prohibit EU Member States from ordering extremely broad injunctions against platforms like Facebook to take down offending material (and therefore allows it). The court held that these injunctions can cover a wide array of material-not just Facebook posts but also reposts and “equivalent” posts- and apply worldwide. In this study, the limits to the freedom of expression and access to information shall be analysed under the case law of the ECtHR and CJEU with specific evaluation as the possible consequences of Google and Facebook judgements rendered by the CJEU.

EU Regulation of New Plant Breeding Technologies and their Possible Economic Implications for the EU and Beyond

New plant breeding technologies (NPBTs), including CRISPR gene editing, are being used widely, and they are driving the development of new crops. They are nevertheless a subject of criticism and discussion. According to a summer 2018 interpretation by the Court of Justice of the European Union (CJEU), European Union (EU) law makes most NPBTS subject to regulations governing the use of genetically modified organisms (GMOs) in the EU. The implications of this decision have been widely discussed in the literature, thereby stressing the importance of the decision for plant breeding and international trade within and beyond the EU. This contribution summarizes the status of the debate and highlights issues that have thus far not been considered—particularly with regard to the implications of EU regulations for NPBTs for countries outside the EU. We conclude that the practical implications of the CJEU decision reduce the EU’s comparative advantage and increase the cost of achieving the objectives of the European Green Deal. Our findings reveal an almost complete lack of possibilities for changing the current situation. China and countries oriented towards China are the most likely economic beneficiaries of the current situation.

Joined Cases C-585/18, C-624/18, C-625/18

The judgment of the Grand Chamber of the Court of Justice of the European Union (CJEU) announced on November 19, 2019 in response to a preliminary reference from the Polish Supreme Court is of fundamental importance for the independence of courts and judges in EU countries, establishing a pillar on which subsequent CJEU decisions have been based. The CJEU concluded that a national court is not an independent and impartial tribunal within the meaning of the European Union (EU) law where the objective circumstances in which that court was formed, its characteristics, and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external interference. In particular, a court may cease to be seen as independent or impartial when it appears to be under the direct or indirect influence of the legislature and/or the executive, or where doubts emerge about their neutrality with respect to the interests before them. Such circumstances threaten the trust that justice in a democratic society must inspire in subjects of the law.

Addressing age stereotyping against older workers in employment

Purpose The purpose of this paper is to report on an analysis of direct age discrimination cases by the Court of Justice of the European Union (CJEU) and the UK courts and employment tribunals over an 11-year period. The paper focusses upon age stereotyping towards older workers and analyses whether it is endorsed at the European level and/or national level. Design/methodology/approach This research has analysed a sample of 100 employment tribunal judgments concerning direct age discrimination together with 28 CJEU decisions on direct age discrimination. Findings This paper highlights that there are a number of cases in which age stereotyping has been endorsed at the CJEU level. By contrast, the UK courts and employment tribunals have adopted a more robust approach. Research limitations/implications The main limitation is that it only considers case law from the European Court and the influence on the UK case law, without analysing the eventual decisions of the other EU member states. Originality/value The paper contributes to the debate with regard to the approach of the CJEU and the UK courts and employment tribunals in tackling age stereotyping and is the first to examine the influence the CJEU decisions has had on the UK jurisprudence over the period studied.

The United Kingdom has spoken: The receding impact of European jurisprudence on the UK interpretation of the common VAT system

Post-Brexit, UK law conforming to Directives of the European Union such as the value added tax (VAT) Directive will remain in effect and UK courts will be permitted to consider decisions of the Court of Justice of the European Union (CJEU) when interpreting that law. How UK common law courts, steeped in the tradition of the doctrine of precedent, will use CJEU judgments in the post-Brexit era has been the subject of much speculation. This article considers the question in the context of a case study, looking at the application by UK courts of CJEU decisions in an important area of VAT law, the treatment of customer loyalty plan benefits. The evidence suggests that, even prior to Brexit, UK courts had started to pursue a separate path, declining to follow CJEU precedents that yielded clearly inappropriate policy outcomes. If the results of the case study are replicated more widely in UK rulings, it can be expected that the influence of CJEU judgments may taper off where formalistic and literalist CJEU interpretations have led to outcomes inconsistent with the recognized policy intent of UK law.

On Joint Controllership for Social Plugins and Other Third-Party Content – a Case Note on the CJEU Decision in Fashion ID

In its decision in Fashion ID, the Court of Justice of the European Union (CJEU) assessed the responsibilities pertaining to the processing of personal data through a Facebook “Like” button embedded in a third-party website. The decision, which was not directed at Facebook Ireland, but at a comparatively small German online clothing retailer embedding the social plugin, reaffirms the preference of (German) authorities and consumer protection associations to regulate Facebook indirectly, i.e. through decisions directed against Facebook’s partners, which is seemingly the more feasible way. In the decision, the CJEU concluded that the website operator, and Facebook Ireland as the plugin provider are jointly responsible merely for the collection of personal data and its disclosure by transmission to Facebook Ireland, whereas the subsequent data processing operations fall under the sole responsibility of Facebook Ireland. This case note argues that this delineation does not sufficiently consider the technical reality behind such plugins. Further, it argues that the CJEU seems to have relied predominantly on the criterion of decisive (factual) influence on data processing, thereby departing from its previous case law. The CJEU further ruled that should joint data processing be based on webpage visitors’ consent, the latter has to be collected by the webpage operator. This solution creates a significant additional administrative burden for the involved companies. According to this case note, the decision on such a technical matter should rather have been left to the disposition of the companies.

You’re Gonna Miss Me When I’m Gone! The Impact of Brexit on Member States’ Contribution to the Case Law of the CJEU

Brexit is scheduled to happen on October 31, 2019, and researchers have previously studied the impact of Brexit on relationships in the EU’s political institutions. This paper studies how Brexit might affect Member States’ interactions with the Court of Justice of the European Union (CJEU) and, more specifically, when they seek to influence the Court by submitting observations. The Untied Kingdom has consistently been a comparatively active Member State, submitting many observations. The paper introduces and employs a novel approach, studying what we call mentions in CJEU decisions, to measure position similarity in Member States' observations and to identify the UK's allies before the CJEU. The paper concludes the loss of the UK will be felt in particular in Germany, the Netherlands, Ireland and in the Nordic countries.

Cross-Border Loss Compensation and EU Fundamental Freedoms: The ‘Final Losses’ Doctrine Is Still Alive!

In a recent judgment the Grand Chamber of Court of Justice of the European Union (CJEU) has given new impetus to its case law on the impact of the fundamental freedoms of the Treaty on the Functioning of the European Union (TFEU) on domestic tax systems as regards the cross-border relief of ‘final losses’ suffered abroad. The present contribution looks into the different phases of development of the relevant CJEU decisions and submits a first evaluation of the new judgment and its potential consequences.

GS Media and its implications for the construction of the right of communication to the public within EU copyright architecture

In its 2016 decision in GS Media, C-160/15 the Court of Justice of the European Union (CJEU) sought to clarify under what conditions the provision of a link to a work protected by copyright made available on a third-party website (where it is freely accessible) without a licence from the relevant rightholder falls within the scope of the right of communication to the public within Article 3(1) of the InfoSoc Directive. In its decision the CJEU held that whether linking to unlicensed content falls within or outside the scope of Article 3(1) of the InfoSoc Directive depends – crucially – on whether the link provider has a profit-making intention or knowledge of the unlicensed character of the work linked to. This article assesses the implications of the GS Media decision in respect of linking, and – more generally – the construction of the right of communication to the public. The main conclusion is that GS Media imposes a re-consideration of what amounts to an act of communication to the public. Yet, the forthcoming CJEU decisions in pending references for a preliminary ruling (Filmspeler, C-527/15, and Ziggo, C-601/15) might lead to a relaxation of the concept of 'indispensable intervention', thus broadening the notion of who makes an act of communication to the public. Ultimately the discussion undertaken in this contribution suggests that the concept of ‘communication to the public’ has been undergoing an evolution. The next frontier for Article 3(1) of the InfoSoc Directive appears to be not just a determination of what amounts to an act of communication to the public, but also who makes an act of communication to the public. The latter in particular is the next question for the CJEU to tackle, and also poses significant – and not entirely worked out – challenges to EU policy- and law-making.

Data Retention Rules:

A blanket data retention rule was introduced after the Twin Towers’ tragedy and the subsequent attacks in Madrid and London. This was aimed at combating terrorism. Despite much criticism, the European Union (EU) adopted the Data Retention Directive (DRD) in 2006. The DRD has been regarded as the most controversial piece of counter-terrorism legislation and the most privacy-invasive instrument ever adopted. The EU only managed to keep this data retention law in place for less than a decade. The Court of Justice of the European Union (CJEU) in 2014 declared it invalid. As a result, several courts in the EU had declared invalid their national legislations. The UK Government also reacted and redesigned its data retention law which, however, seems to have gone a step further. The Data Retention and Investigatory Powers Act (DRIPA) was enacted in 2014. This article examines ’the slow death’ of the DRD and the short-lived DRIPA. We argue that the UK Government should have learned the lessons from the CJEU decision on the DRD in 2014. More importantly, the CJEU’s 2016 decision striking down DRIPA is a caution and guidance to all EU Member States.

DERECHOS SOCIALES Y TEORÍA DE LA INTEGRACIÓN EUROPEA: UBICANDO LA JURISPRUDENCIA DEL TJUE EN TRES CONTEXTOS NACIONALES

This article examines the jurisprudence of the Court of Justice of the European Union (CJEU) concerning the social rights of mobile EU citizens from the perspective of European integration theory. Our aim is to situate the effects of EU jurisprudence in 3 Member States – Germany, the Netherlands, and the UK and examine to what extent the selected Member States change their policies on social rights in relation to CJEU jurisprudence. Europeanization through law has been described as one of the most powerful meta-narratives of European integration: the adoption of common laws and standards coupled with the primacy and direct effect of EU law force the Member States to adjust their national policies and legislations in order to comply with EU rules. Europeanization literature has taken a keen interest in legislative acts, and although the importance of CJEU jurisprudence is acknowledged, Europeanization through case law remains a somewhat lesser explored area. The argument put forward in this article is that although EU legislative measures remain an important source of Europeanization of the welfare state, CJEU decisions play an equally important role in clarifying Member State obligations towards economically inactive mobile EU citizens.